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Monthly Archives: November 2006

A recent court denied a motion to preliminarily enjoin distribution of copyrighted dildos, noting that dildos are useful articles, and separating the copyrightable expression from the unprotectible ideas would be … difficult. Bill Patry excerpted some of the best parts of the decision. Conwest Resources, Inc. v. Playtime Novelties, 2006 WL 3346226 (N.D. Cal. 2006).

It used to be that my most exciting legal props quest was to find a jeweled bee pin.

I really can’t stand it when politicians engage in cheap & sleazy grandstanding, knowing that what they’re doing is actually irrelevant. I’m speaking of Mitt Romney’s “lawsuit” to get the Mass. courts to step in to force the Mass. legislature to vote on an anti-same-sex-marriage amendment. [nyt 11/25]

Cheap & sleazy political grandstanding may be characterized by (a) someone making a gesture that appears potentially functional, but (b) is actually known to be ineffective, and (c) is undertaken for purposes of making a point.

I have no objection to Romney just making the frickin’ point, already. He could, and should, decry the legislature for not voting on the amendment. Sure, it’s tedious, hateful, and boring, but it’s to the point.

On the other hand, filing an obviously meritless lawsuit, rather than just making speeches, wastes government resources. I honestly think Romney and his co-litigants should be sanctioned for filing frivolous litigation.

Not only is this lawsuit legally frivolous, but it’s stupid: Even if he did force a vote, he doesn’t have the votes!

Thanksgiving weekend research questions: (1) Does Massachusetts have a political question doctrine to get this thing done with quickly; and (2) what are the possible sanctions for filing frivolous litigation.

The Library of Congress / Copyright Office issued its third set of DMCA rulemaking exemptions, just before taking off for the holidays. I was eagerly anticipating the rulemaking (even more eagerly than usual) after David Carson, General Counsel at the Copyright Office, kept dropping hints about the what we could all look forward to at a panel at Fordham last Friday. (The ever witty Hugh Hansen said it was the closest he’s seen to a legal strip tease.)

The rulemaking is more generous than it has been in past years (though still not as generous as I would be).

To sum up & paraphrase:

“Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years.” (The exemptions go into effect starting Monday 11/27 & expiring Oct. 27, 2009.)

Film professors. (new) Film professors etc. can circumvent CSS on DVDs for teaching. (Limited to works in the school collection.) (New exemption)

Preserving old video games. Libraries & archives can preserve computer programs & video games for obsolete platforms & medias. (This kind of exemption shows the weirdness of the 3-year expiration for each of these rulemakings. Libraries & archives had better do a lot of preservation in the next 3 years because who knows if we’ll get it again in 2009! This is a carry-over exemption, but every 3 years librarians have to make the case again.)

Cell phone switching. (new) If you switch cell phone companies you can disable proprietary technologies to keep your cell phone. (This is a new exemption.)

Sony rootkits. (new) Sony rootkits and other CD copy protections can be disabled to test, investigate, or correct security flaws or vulnerabilities. (This is a new exemption, and I’m glad it’s here, but, honestly, we got more bang for the buck out of the furious glare of news media & public outrage & a little state’s attorney general scrutiny.)

The Librarian of Congress carefully reminded us that “[t]his is not a broad evaluation of the successes or failures of the DMCA.” Also, that the rulemaking is just for access-control exemptions, not copy-control exemptions, nor does the rulemaking craft exemptions for the prohibitions on making / distributing circumvention tools.

There’s a lot more detail in the 88 page “Recommendation of the Register of Copyrights”, which is where the juicy comments on everybody else’s proposed recommendations will be. What a fun txgiving read! O thank you Copyright Office — this is much better than a football game. (I’m not being sarcastic.)

From my perspective, the Section 230 (qualified by dicta) victory in Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist (PDF), is fine, unsurprising, but a relief. But more importantly, to me, the case demonstrates a significant and ongoing failure of the public interest tech law community: Explaining to people outside our community why it is in the best interests of progressives and folks fighting discrimination to enable a robust sphere for communications.

For those not in the know, the CLCCRUL fights housing discrimination. One way they do it is by using laws that prevent the publication of discriminatory housing ads in, for instance, newspapers. The CLCCRUL filed suit against Craigslist for discriminatory housing ads that were posted on its website. Craigslist lets users post their own ads, and lets users “flag” other user-oriented content that is illegal for whatever reason, like the Fair Housing Act. It’s a largely automated and user-driven moderation process like many others on the Internet. In 1996, Congress passed Section 230 which protects Internet service providers (called “Online Content Services” or OCS’s) from liability as a “publisher” for their users’ content. Courts have pretty much uniformly read Section 230 as Congress exempting ISPs/bulletin boards and the like from any liability for their users’ messages (except IP which is explicitly exempted from S.230’s “safe harbor”). Legally, there isn’t much to the case, because Section 230 squarely applies. Emotionally, as a matter of justice, it seems to some to be a different matter.

Section 230, like copyright law, clickwrap clauses, reverse engineering, WIPO, Internet jurisdiction, and other such issues can seem pretty bloodless when you’re fighting for the right to housing, reproductive decision-making, and healthcare, or to end race discrimination, the death penalty, or torture. Social-change activists may humor us occasionally, but they don’t see those of us in the information activist community as really, truly, fighting for something that they should care about. They just don’t get it.

To me, these issues are fundamentally free expression issues — which, as Emma Goldman saw, underpin the right to advocate for every other right.

For Section 230, for instance: The Internet is the largest and most open platform for human communications that has ever existed. The technology needed to gain access to every other person on the Internet is increasingly affordable to everyone, with cell phone networks, free wireless municipal networks, cheap computers, and so on. People and “society” more generally are now learning to navigate and contribute to and draw from the increasingly vaster floods of knowledge. I believe that the transformative power of that access to knowledge offers humans the best opportunity yet to transcend the petty powers of principalities, the tyranny of learned prejudice, the prison of ignorance. The pen is mightier than the sword–it has the power to destroy fascism at its root.

And Section 230 is a critical piece of that. If you can’t speak because a gatekeeper controls the speech, and the gatekeeper could be subjected to liability under someone else’s local rules, then your ability to speak and access speech is set to the lowest common denominator available to all. A race to the bottom in terms of what’s allowed.

Permitting people to speak in untrammelled ways leads to offensive and arguably harmful speech. But if you create a chokepoint for speech on the greatest speech platform yet to exist, then others will be only too happy to use that chokepoint for their own agendas.

And it’s not just speech. The people that CLCCRUL is representing–anybody seeking housing, because everybody benefits from a non-discriminatory housing market–are the primary beneficiaries of an open, user-controlled housing information market. They have access to more postings and information. They don’t have to go through rental agents who may have secret or subconscious prejudices. They have the ability to flag biased postings and police the community, themselves. (It’s the ultimate form of community policing, and it works a hell of a lot better than any attempt at governmental regulation ever can.) And for a myriad of other reasons, an open, responsible-to-the-community, speech platform is better, both in the short-term and in the long-term, for people seeking housing and for people seeking an end to invidious discrimination of all kinds.

I haven’t even gotten to the real and qualitative differences between printing-press and broadcast media, and the Internet. But it’s a worthwhile exercise to look at the best arguments for regulating print and broadcast media, and assess how those arguments play out on the Internet. Defamation, for instance. One good reason for regulating print publishers of libel (defamation) more harshly than spoken publishers of libel (slander) is that print publishers have a powerful tool at their disposal that the victim of defamation may not: the ability to reach a mass audience relatively cheaply. How does that map to the Internet? Well, it turns out that in terms of being able to respond to the libelous speech, the Internet is a lot more like spoken word (slander) than it is like printing press or broadcast (defamation): It’s pretty easy to get access to the same forums & the ability to respond to the libelous speech. So, one could argue, libelous speech on the Internet is less harmful than libelous speech made on the radio station or in the local newspaper. The rationales for restricting publication in print newspapers may likewise apply differently in the Internet. This is a case that our community should be making, persuasively and directly, to communities that are seeking, for very good reasons, to regulate speech on the Internet.

… Anyway, rather than castigating or calling for Rule 11 sanctions against the CLCCRUL attorneys as a number of folks have done, I’d rather see us try to reach out to them to explain why it’s in the best interests of their clients to support Section 230 and craigslist, instead of attacking it. (I don’t mean CLCCRUL directly, btw; once you’re in litigation it’s difficult to shift gears. But other social-change activists.) Others, no doubt, can make different, better, or more persuasive arguments than I have. I hope they do. We in the public interest tech community have an affirmative responsibility to lay out these arguments, not just to ourselves, but to our activist allies, whoever they might be.

Ah, a fine Sunday morning reading the paper, and trashing media bias and sloppy reporting at the NYT …

This annoying NYT article (11/12) on police witness “sanctuary” policies is a perfect example of how articles can be technically “balanced” but still really suck present an imbalanced picture.

The police witness sanctuary policies basically tell local police that, when talking with a witness (including the victim) to a crime, they shouldn’t ask about immigration status. And, yes, there is a humanitarian rationale for them that benefits immigrants in particular. But there is also a significant rationale that applies to everyone, not just immigrants: These policies protect anyone who might be the victim of a crime, not just immigrants, by encouraging everyone to come forward without fear of personal repercussions. Do you really want the one person who saw the hit-and-run, or the murder, or the burglary, or the purse-snatching, or the kidnapping … to not come forward because her immigration status is in trouble?

The article, unfortunately, never presents that very basic, fundamental argument in a clear way, and instead presents the pro-sanctuary policy arguments in only a very muddled fashion. At the same time it gives plenty of space to the well-articulated (albeit distasteful) positions of those folks willing to cut off their crimefighting noses to spite immigrants. Or something like that.

The NYT has two interesting stories right now featuring, shall we say, different approaches to artists and IP.

The first in a genre near and dear to my heart is a profile of Dark Horse Comics, which “built [their] publishing platform around creators’ rights … [Their] pitch was, ‘We’ll match the rights that you get from other companies and we’ll let you own the work.’”

The second is an article about Daniel Moore, a photo-realist artist (he calls it “photofuturism”) of Alabama sports moments. The University (as we in Alabama called it) is suing Moore for trademark infringement of its crimson-and-white color scheme. Yea, Alabama, Crimson Tide, yadda yadda yadda fight song lyrics sung ironically. (I went looking for the actual fight song lyrics, which did not comport with my memory, and found myself in a hell of blinking and color-challenged websites dedicated to Crimson Tide football obsession. Dave’s College Football Fight Songs is restfully simple, for those of you who want to know the actual lyrics, and not the one line that is engraved falsely in my memory.)

In a time of many horrors, my eye was caught by this outrage [NYT 11/3]:

Under a new federal policy, children born in the United States to illegal immigrants with low incomes will no longer be automatically entitled to health insurance through Medicaid, Bush administration officials said Thursday.

“Children born in the United States” — i.e., US citizens.*

Now, when a woman gives birth on Medicaid, her child is only eligible for care once the parents get the birth certificate & file a Medicaid application. Of course illegal immigrants may be leery of filing paperwork, and even if they do, it can take a long time to process — weeks or months. So infants in their first few months of life may not receive preventive care and care for chronic conditions.

Thanks, Rep. Charlie Norwood (R-GA). What a good idea, you ass-hat.

S. Kimberly Belshé, California’s secretary of the Health & Human Services Agency, said: “By virtue of being born in the United States, a child is a U.S. citizen. What more proof does the federal government need?” Georgia citizens should try to recruit her to replace Rep. Asshat.

…

* To be completely fair, I think infants — all people — should get medical care regardless of citizenship. But surely even the hardest anti-immigrant folks have to quail at the thought of newborn US citizens being denied healthcare they need and have a right to simply because of bureaucratic delays.

Thanks to my partner (a postdoc) who sent me this illustrative graphic from the report.

…

* I say “husband” instead of “spouse” because I suspect this report, while in theory about “marriage”, most likely included only or primarily heterosexual partnership/marriages. This report and many others show that academic men do better with wives than without, while this report shows that academic women do better without husbands than with. The rather personal question it raises for me is, what about lesbian professional/academic couples? Does the penalty for “marriage” apply?

Also, does the parenting penalty apply only to the birth-mom or the stay-at-home mom, or does it apply regardless based on choices that most moms make to prioritize their children, regardless of the presence or absence of gender of their partner? The data showed that single moms did better than married-to-a-man moms, so I suspect that the problem for academic moms is not motherhood, per se, but persistent sexism in academic moms’ heterosexual relationships. Is there a better way to understand this data?